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Tariffs and Threats in US Trade Policy: Debunking the Myth of Global Reset
Get PDFIn June 2020, the United States pushed for a reset of tariffs at the World Trade Organization (WTO). This move was heralded as necessary for the United States to level the uneven playing field caused by high bound tariff rates. Ordinarily, the United States perceives trade remedies as a defensive measure. However, in this context, the United States seems to be preemptively acting against any misapplied, anti-dumping duties that it may face. For this reason, a global reset of tariffs will likely find support. It can be counterproductive for the new US administration to pursue such a strategy. If realized, it could result in countries pursuing trade remedies such as anti-dumping duties, which could adversely affect US exporters. In the long term, this could cause a fundamental shift in US trade remedy politics. This Article will argue that citing high bound tariff rates to call for a reset of tariffs is un- sound. A WTO member can legally impose bound rates, which represent maximum rates. The ground reality remains that most countries apply tariffs that are lower than their bound rates in line with their multilateral commitments. While examining the rationale for different tariff policies, this Article will show that a tariff reset will adversely affect both US interests and established multilateral systems
Gravity and Grace: Foreign Investments and Cultural Heritage in International Investment Law
Get PDFGlobalization and international economic governance have promoted dialogue and interaction among nations, potentially increasing cultural diversity and providing the funds to recover and preserve cultural heritage. However, these phenomena can also jeopardize cultural diversity. Foreign direct investments in the extraction of natural resources have the potential to change cultural landscapes, destroy monuments, and erase memories. In parallel, international investment law constitutes a legally binding and highly effective regime that demands that states promote and facilitate foreign direct investment. Does the existing legal framework adequately protect cultural heritage vis-a-vis the economic interests of foreign investors? To address this question, this Article complements traditional tools of legal analysis with a novel, interdisciplinary, philosophical perspective. This Article relies on the thought of Simone Weil (1909- 1943) to examine how cultural and economic forces can be balanced in international law. A philosopher, mystic, and resistance fighter, Weil was a defining figure of the twentieth century. While no study has highlighted the relevance of her thought for international law yet, her philosophy can help clarify legal concepts, reflect on what principles ought to be accepted, and identify future directions of the field. This Article relies on her philosophy for investigating the interplay between foreign investments and cultural heritage in international investment law and arbitration. In light of Weil\u27s philosophical insights, this Article also examines recent arbitrations and proposes three legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration
The Pivotal Role of International Human Rights Law in Defeating Cybercrime: Amid a (UN-Backed) Global Treaty on Cybercrime
Get PDFOn May 26, 2021, the General Assembly of the United Nations adopted a resolution approving the drafting of a new global treaty on cybercrime, which commenced in February 2022. The proposed UN agreement on cybercrime regulation has garnered significant criticism among the international community, namely by state delegates, human rights advocates, and nongovernmental organizations. Fears stem from the belief that such a treaty would be used to legitimize abusive practices and undermine fundamental human rights. National cybercrime laws already unduly restrict human rights. However, at a time where the global community has moved toward a digital world, it becomes even more necessary to legislate on a global scale against the commission of cybercrime.
This Article aims to provide guidance on how to ensure respect for human rights in the drafting of a global treaty on cybercrime in the hopes that it will help guide the process and facilitate a smoother transition. The Article concludes that national security concerns stemming from threats of cybercrime should be viewed not as dichotomies but as complementary, where one cannot be achieved without respect for the other, concluding that the best approach is one that integrates human rights into the text of the treaty, thereby ensuring that human rights are not trumped by national security concerns in the name of cybercrime regulation
Russia, Ukraine, and the Future World Order
Get PDFRussia\u27s invasion of Ukraine, initiated on February 24, 2022, is among the most—if not the most—significant shocks to the global order since World War II. This piece assesses the stakes of the invasion for the core principles that lie at the heart of contemporary international law and the world order that it has helped to create. We argue, relying in part on the other contributions to the October 2022 agora on Ukraine in the American Journal of International Law, that however this war ends, it will reshape, in ways large and small, the world we all inhabit
Unauthorized and Unwise: The Lawful Use Requirement in Trademark Law
Get PDFFor decades, the United States Patent and Trademark Office ( PTO ) has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this lawful use requirement, the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule 1 controlled substances to mislabeled soap. This Article subjects the Agency\u27s lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has overstepped the limits of its statutory authority and undermined federal trademark policy. Whether a mark owner has used its mark to sell improperly labeled soap or an illicit drug, the PTO has no mandate, and no convincing policy reason, to deny the owner the substantial benefits of registration. Simply put, the Agency\u27s lawful use requirement has no place in trademark law
Mergers, Antitrust, and the Interplay of Entrepreneurial Activity and the Investments That Fund It
Get PDFThis Article addresses the potentially negative implications of proposed antitrust legislation on the entrepreneurial ecosystem in general, with a particular focus on the venture capitalists (VCs) that fund it. First, it offers a review of how antitrust merger law currently works and how proposed legislative changes to antitrust may threaten the innovative Venture Capital (VC)-backed ecosystem that has made the United States the center of global innovation across many different industries. Accompanying this review are some empirical observations. Second, recognizing that the understanding of innovative entrepreneurial activity calls for a deep appreciation of those who back it, the Article also provides an overview of the entrepreneurial ecosystem and VCs’ motivations within this niche environment. In so doing, the Article identifies the drivers of entrepreneurial innovation and explains why changes to merger law may threaten these models of facilitating innovative, growth-orientated entrepreneurs. Finally, the Article concludes that changes to merger law may negatively affect the entire entrepreneurial ecosystem and hinder innovation in the United States
The False Allure of the Anti-Accumulation Principle
Get PDFToday the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power-—legislative, executive, and judicial—-in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, applied to its full extension, are vast. It would invite a new era of constitutional policing of the internal structure of the executive branch and administrative agencies.
This Article argues that separation-of-powers law contains no antiaccumulation principle. Unable to find textual support in the Constitution for this principle, proponents latch on to but misread James Madison’s famous statement that the “accumulation of all powers . . . in the same hands . . . may justly be pronounced the very definition of tyranny.” Functional considerations—like fairness, avoiding the triumph of faction, and efficiency—-also do not justify the anti-accumulation principle or its application internally to the executive branch.
The anti-accumulation principle is generally posited by jurists and scholars whose leanings are formalist and conservative. However, a set of liberal scholars commit the same error. More focused on checks and balances than on pure separation of powers, these scholars either defend or seek to reform the current structure of the executive branch. In doing so, they either invoke or assume the existence of an anti-accumulation principle, working from the premise that the principles that justified the allocation of power among the three branches must also apply within the executive branch.
While the executive branch needs greater constraint, separation of powers neither requires greater internal divisions nor provides a robust menu for reform. To the extent valid constitutional concerns underlie the antiaccumulation principle, they rest on due process and should be evaluated as such
Bringing Predictability to the Chaos of Punitive Damages
Get PDFPunitive damages remain unique in the American legal system. Awarded in the civil context with none of the protections offered in criminal law, courts levy punitive damages to punish and deter. The Supreme Court of the United States has clearly stated that courts may only seek to achieve these two goals when imposing punitive damages. A closer reading of the Court\u27s punitive damages jurisprudence, however, reveals another goal that has largely been ignored: predictability. Unlike punishment and deterrence, predictability is not a purpose for which to award punitive damages. Instead, the Court requires that, when awarded, the level of punitive damages must be predictable. Failure to provide fair notice of the penalty for which a defendant may be liable amounts to a violation of the Fourteenth Amendment\u27s Due Process Clause.
Though the Supreme Court has articulated that predictability is on par with punishment and deterrence in its punitive damages jurisprudence, the question remains as to whether this goal has been achieved This Article answers that question with an empirical analysis of 167 blockbuster punitive damages awards those over $100 million. These extreme awards offer a unique and important opportunity to investigate whether the Court\u27s current approach to predictability has worked. Unfortunately, it has not. Our analysis reveals that blockbuster awards remain unpredictable. In general, the amount of blockbuster punitive damages awarded is roughly as predictable as deaths caused by catastrophic floods, andfew would argue that devastating natural disasters are readily predictable.
Given the continued unpredictability of punitive damages, as evidenced by the random occurrence of blockbuster awards, this Article takes the next logical step of articulating a new constitutional framework. We argue that the Supreme Court should abandon its complicated system based on three guideposts, which eschews bright-line rules. In its place, we offer a clear limit on punitive damages. We propose that punitive damages may not exceed the compensatory damages awarded against the same defendant by more than a factor of three. This 3-to-1 ratio limit stems from the same type of empirical evidence that the Court has historically embraced in its punitive damages jurisprudence. The lone exception to this limit applies when a person is killed or injured. In that case, the value of statistical hfe serves as the lodestar for determining the total damages payment, thus guiding courts toward predictable punitive damages awards. If the Court takes predictability as seriously as it has stated, it can adopt our approach to take meaningful steps toward this important goal
Paid Sick Leave\u27s Payoff
Get PDFPerhaps paid sick days have never been more valuable than during the COVID-19 pandemic. Yet even before COVID-19, seventeen states and the District of Columbia began passing legislative mandates that employers provide employees with paid sick leave (“PSL”) days. Most of this legislation requires employers to provide up to one week of PSL for both full- and part-time employees, which they can utilize with few notice or documentation requirements. Using the 2017–2018 American Time Use Survey Leave and Job Flexibilities Module, I first demonstrate that workers in PSL states are less likely to go to work sick, which may, in turn, reduce concerns about the spread of infectious disease in the workplace. Next, I present evidence from the 2020–2021 Current Population Survey that workers in PSL states have enjoyed higher employment rates and labor market participation rates during the pandemic than have similarly situated workers in non-PSL states. By enabling employeesto take short-term leave when either they or an immediate family member fall ill-—without risk of job or income loss-—PSL legislation may help stabilize employment and keep workers attached to the labor market
Policing Police Tech: A Soft Law Solution
Get PDFPolicing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us—constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well.Despite these risks, new policing tech products continue to be adopted and deployed without sufficient (or any) regulatory guardrails or democratic oversight. Legislative bodies are reluctant to adopt traditional “hard law” regulation. And because there is no regulation, what we are left with is a “race to the bottom” in which policing technology vendors develop increasingly intrusive products with minimal or no safeguards.This Report explores a “soft law” approach to dealing with the race to the bottom around policing technologies: an independent body charged with certifying policing technologies before they are deployed. It examines the viability of an independent body—governmental or not-for-profit—that would perform both an efficacy review and an ethical evaluation of vendors’ products, assessing them along privacy, racial justice, and civil rights and liberties dimensions, among others. It explains how, in theory, certification can overcome some of the obstacles facing hard law regulation. It then discusses the practical design considerations that a policing tech certification system would have to navigate. It also surveys the challenges posed in the implementation of a certification regime, including how to ensure the body is legitimate and obtains stakeholder buy-in, and whether certification would encourage or undercut hard law regulation. Ultimately, the Report concludes that although adopting a certification scheme presents challenges, the idea has enough merit to receive serious consideration as part of a unified system of getting policing technologies in check